IN THE SUPERIOR COURT FOR THE STATE OF ALASKA FOURTH JUDICIAL
DISTRICT
MARK TUMEO AND KATE WATTUM
Appellants,
VS.
UNIVERSITY OF ALASKA,
Appellee.
Case No. 4FA-94-43 Civil
MEMORANDUM DECISION AND ORDER
The appellants, Mark Tumeo and Kate Wattum, challenge the decision of
University of Alaska President Jerome B. Komisar dismissing their grievances.
Tumeo and Wattum had grieved the University's denial of their requests to enroll
their same-sex domestic partners in the University's health care program. Tumeo
and Wattum maintain that the UniversityUs refusal to include their domestic
partners when the University includes husbands and wives violates Board of
Regents policies because (1) the health plan discriminates against employees on the
basis of marital status, (2) the health plan discriminates against employees on the
basis of sex, and (3) the health plan is not merit-based and is arbitrary and capricious.
I. FACTS
Tumeo and Wattum are both University of Alaska employees. Tumeo is Associate
Professor of Engineering at the University of Alaska Fairbanks. Wattum is
Publications Assistant, Statewide Public Affairs in Fairbanks. R. 23
Both Tumeo and Wattum have applied for health insurance coverage for their
same-sex domestic partners. R. 1, 3. TumeoUs partner is Bruce Anders ("Anders").
R. 2. Tumeo and Anders have jointly executed an "Affidavit of Spousal
Equivalency". R. 2. The affidavit sets out in detail the nature of the Tumeo/Anders
relationship, essentially asserting that Tumeo and Anders are same-sex domestic
partners who are "jointly responsible for each other's common welfare and
financial obligations.S R. 2 It indicates that Tumeo and Anders provided the
University's Benefits Office with the affidavit Rfor the sole purpose of
demonstrating (their) eligibility for spousal benefits.S R. 2.
Wattum's partner is Beverly McClendon (RMcClendon"). R. 1, 7. When Wattum
grieved the University's September 17, 1993, decision denying benefits to
McClendon, she offered "to provide alternative documentation of the committed
nature of my relationship (with McClendon)." R. 20. There is no evidence in the
record that the University responded to this offer. However, the record is similarly
devoid of evidence that the University challenged the committed nature of
Wattum's relationship with McClendon.
The University provides employer-funded health coverage for its employees and for
the employees' Rdependents.S R. 72-73. The University defines "dependent", in
part, as "your spouse (husband or wife)." R. 71. Tumeo and Wattum claim that the
University is subsidizing at least part of the cost of health care coverage of an
employee's spouse. 1** The university has not disputed this claim, but instead it
argues that such a subsidy is not unlawful.
1** Apparently, the value of this subsidy is at least $150 per month. R. 31.
II ADMINISTRATIVE PROCEEDINGS
The university denied both Tumeo's and Wattum's applications for health care
coverage for their partners, stating that "the health care plan does not allow for
coverage of a domestic partner.S R. 5. Tumeo and Wattum grieved the University's
decisions not to provide health care benefits to their partners. R. 6, 7.
Tumeo and Wattum argued in their grievance that because the university provides
health care benefits to employees, spouses and not to employees' domestic partners,
the university is discriminating on the basis of marital status, in violation of state
law and University regulations. Additionally, they argued that the University
provides health care coverage to an employee's partner only if the partner and the
employee are of different sexes, in violation of state law and University regulations
forbidding discrimination on the basis of sex. In upholding its decision to deny
health care coverage to Anders and McClendon, the University stated that it Ris
under no obligation to provide health insurance coverage for same sex partners.S R.
8.
The University's Grievance council stated that there was Rnot a reasonable
likelihood that the matter complained of was a violation, misinterpretation, or
improper application of a policy of the Board of Regents, or a university regulation
or an abuse of discretion arising from the administration of such policy or
regulation as applied to the grievants.S R. 1.0- It explained, in part:
[T]he council concluded that since [the University] denied in equal measure, health
care benefits sought by both a male and a female on behalf of their same sex
partners, a male and a female, that the denial of benefits were [sic] made without
regard to the sex of the applicants or the putative dependents for whom benefits
were sought, and thus did not discriminate based upon sex and thus are not in
violation of regent's policies which prohibit discrimination based upon sex.
R. 12. As to the plaintiffs' marital status argument, the council stated, in part:
The Council concluded that only if Alaska state law (which must be followed under
the Regent's policy invoked by the grievants) provided for same-sex marriages could
there be a reasonable likelihood the respondent violated, misinterpreted, or
improperly applied Board of Regents policy in this regard...The Council concluded
that
marriage is not recognized by Alaska law and hence the marital condition of being
married is not fulfilled by the grievants and hence there was not a reasonable
likelihood that respondent violated, misinterpreted, or improperly applied Board of
Regents policy with regard to the marital status of the grievants. Only if grievants,
not being in the marital status of marriage under state law, had been denied benefits
only available to those falling under the marital states (sic, status?) of being single
(or unmarried) , could the grievants' unmarried under state law, be considered to
have been discriminated against because of their marital condition.
R.13-14. It was the recommendation of the Grievance Council that the President
dismiss the grievances. R. 11.
The University's President, Jerome Komisar, accepted the recommendation of the
Grievance council and dismissed Tumeo and Wattum's grievances. R. 32. in so
doing, the President stated that he did not "fully agree[] with the stated rationale
offered by the Grievance Council in support of its recommendation that the
grievances be dismissed." R. 32. However, he indicated that he did Ragree with the
council's conclusion that there is not a reasonable likelihood that the matters
complained of in the grievances constitute a violation, misinterpretation, or
improper application of a Policy of the Board of Regent...SR. 32 This appeal
followed.
III. DISCUSSION
A. Standard of Review
The appropriate standard of review for this appeal is the Rsubstitution of
judqmentS or Rindependent judgmentS standard. Because this appeal involves
questions of contract law, constitutional law, and statutory interpretation, the court
need not give any weight to the University's conclusions with regard to the
appellants' claims but must instead apply its own independent judgment in
assessing the claims. E.g., Zuelsdorf v University of Alaska, 794 P.2d 932, 934 (Alaska
1990); Earth Resources Co.of Alaska v. State Department of Revenue, 665 P.2d 960,
965 (Alaska 1983).
The court is restricted to reviewing the University's interpretation of law; the court
may not review the wisdom of the University's action. Groh v. Egan 526 P.2d 863,
866-67 (Alaska 1974). That is, the court has the authority to reviow the lawfulness of
the university's action but may not Rsubstitute its judgment as to the sagacity of a
regulation.S croh, 526 P.2d at 866.
B. Existence of a Grievance
The University argues that the Rappellants' complaint did not constitute a
TgrievanceU, within the meaning of the University's grievance policy.S Appellee
Br. at 9. The court disagrees. Board of Regents [RBORS] Policy 04.08.08(II) (A) defines
"grievance" as:
an allegation or complaint by an employee or a group of employees of the
University that there has been a violation, misinterpretation or improper
application of a policy of the Board of Regents or a University regulation, or abuse of
discretion arising from the administration of such a policy or regulation which
adversely affects the employee or group of employees.
R. 33. According to the University, in order for the appellantsU complaint to
constitute a "grievance", there must be "a likelihood" that the University violated,
misinterpreted, or improperly applied a BOR policy or a University regulation.
Appellee Br. at 9.
Obviously, the University's own definition of "grievance" does not include a
"likelihood" requirement. Rather, the definition indicates that a grievance exists
when an employee merely alleges or complains that there has been a violation of a
law or a university regulation. 2**
2 **If the court were to accept the University's "likelihood" requirement, an
employee would have to prove he or she was "likely" to succeed on appeal in order
to gain access to the appellate process. If the employee could not show that his or her
complaint or allegation was "likely" to succeed on appeal, the complaint would
cease to be a "grievance".
In this case, Tumeo and Wattum allege that the University ,violated: (1) article I,
sections 1, 3, and 7 of the Alaska Constitution; (2) article XII, section 6 of the Alaska
Constitution; (3) AS 18.80.220; (4) BOR Policy 01.01.04; and (5) BOR Policy 04.03.01.
Because this amounts to an allegation that "there has been a violation,
misinterpretation or improper application of a policy of the Board of Regents or a
university regulation, or abuse of discretion arising from the administration of such
a policy or regulation", their complaint is a "grievance" within the meaning of BOR
Policy 04.08.08.
The university appears to have confused the definition of "grievance" with the
actual basis on which the Grievance council recommended dismissal, viz., that
"there [was] not a reasonable likelihood that the matter coinplained of was
violation, misinterpretation, or improper application of a policy of the Board of
Regents, or a university regulation or an abuse of discretion arising from the
administration of such policy or regulation as applied to the grievants.S R. 10. This
is not a determination that the purported grievance was not a "grievance"; it is a
determination made before hearing of no reasonable ground of success. BOR Policy
04.08.08(IV)(C) provides, in pertinent part:
The chair of the grievance council shall promptly provide a copy of the request for
hearing and all other documentation submitted with the request to the respondent.
Copies shall also be provided to the university general counsel, the campus
personnel director, and the system human resource executive director. within ten
(l0) working days of receiving the request for a hearing, the grievance council shall
meet to determine whether there is a reasonable likelihood that the matter
complained of was a violation, misinterpretation, or improper application of a
policy of the Board of Regents, or a university regulation, or abuse of discretion
arising from the administration of such policy or regulation as applied to the
grievant. A majority of the grievance council membership shall constitute a
quorum.
The grievance council's determination shall be based on a review of the written
request for a hearing, all other documentation submitted, and the written responses
of the respondent and/or the respondent's supervisor. The council may also direct
questions to the grievant, if necesary.
Within five (5) working days of the grievance council's determination, the
grievance council chair shall provide a written explanation of the determination to
the grievant, respondent, and chancellor. If the determination is made that there is
no reasonable likelihood that there has been a violation, misinterpretation,
improper application, or abuse of discretion arising from the administration of a
Board of Recjents policy or university regulation as applied to the grievant, the
grievance council shall recommend that the chancellor dismiss the matter. If the
chancellor accepts the recommendation to dismiss the matter, notification of the
dismissal shall be transmitted by the chancellor to the grievant within five (s)
working days.
R. 37-38. Thus, the decision that there is no reasonable likelihood of a violation,
misinterpretation or misapplication is a decision on the merits. It is not a decision
that the parties' complaint was not a "grievance."
C. Marital Status Discrimination
Alaska statute 18.80.220(a) (1) makes it unlawful for an employer:
to discriminate against a person in compensation or in a term, condition, or
privilege of employment because of the person's . . . Marital status . . . .
Similarly, under BOR Policy 04.03.01(B)(1)(a):
The university of Alaska does not engage in impermissible discrimination. In
accordance with federal and state law, the University of Alaska makes its programs
and activities available without discrimination on the basis of . . . marital status . . . .
If the University is discriminating against Tumeo and Wattuin based on their
marital status in violation of AS 18.80.220(a)(1), it is also violating BOR Policy
04.03.01(B) (1) (a) . If the University's health care plan does discriminate on the basis
of marital status in violation of 18.80.220(a)(1), the President's decision in this case
must be reversed.
The appellants argue that the University extends eligibility for health care coverage
to an employee's domestic partner only if the partner and the employee are married.
They note that employer provided benefits are considered "compensation" to an
employee. See Newport News Shipbuilding and Dry Dock Cop. v. EEOC, 462 U.S.669,
682, 77 L.Ed.2d 89, 101 (1983) (health insurance benefits are "compensation, terms,
conditions, or privileges of employment" for purposes of Title VII)3**
3** The Alaska Human Rights Act (AS 18.80.220) offers broader protection to
employees than does Title VII. Alaska Drilling, Inc., 768 P.2d 1123, 1132 (Alaska
1989);Wondzell v. Alaska Wood Products, Inc., 601 P.2d 584, 585 (Alaska 1979).
; Ragland v. Morrison-Knudsen Co., 724 P.2d 519 (Alaska 1986) (vested fringe
benefits including health insurance plans are "wages" for purposes of Alaska
WorkersU compensation Acts); Gorman V. City of Haines, 675 P.2d 646, 649 n.5
(Alaska 1984) ("the city had the power to include disability pension benefits in the
compensation provided to its employees").4 **
4 **The University has not challenged the assertion that such benefits are
"compensation" to the employee.
The Alaska supreme court has decided two cases regarding discrimination on the
basis of marital status in violation of the Alaska Human Rights Act, Forman v.
Anchorage Equal Rights Commission, 779 P.2d 1199 (Alaska 1989), and Swarnner v.
Anchorage Equal Rights Commission, 874 P.2d 274 (Alaska 1994). Both cases involve
AS 18.80.240, which prohibits discrimination in housing.5 **
5 **AS 18.80.220, at issue here, precludes discrimination in employment.
In Foreman, an unmarried woman attempted to rent an apartment for her family,
which consisted of her baby, the baby's father and herself. The Foremans' refused to
rent to her because she and the father were not married. They would have rented to
her if she had been married or if only the baby and the woman planned to reside in
the apartment. The Foremans maintained that the refusal was not discrimination
because the statute did not reach discrimination against two cohabiting people. The
court ruled that AS 18.80.240 was intended to protect unmarried couples. The court
stated:
We conclude that state and municipal prohibitions
against discrimination based on marital status protect the rights of unmarried
couples. The Foremans would
have rented the apartment to Hohinan, Kiefer and the
infant had Hohman and Kiefer been married; the
Foremans refused to rent the apartment only after they
learned that Hohman and Kiefer were not married. This
constitutes unlawful discrimination based on marital
status.
Forman, 779 P.2d at 1203.
In Swanner, a landlord refused to rent to unmarried couples who were cohabiting
outside of marriage. Swanner claimed he did not discriminate based on marital
status, but rather based on conduct, cohabiting. The court rejected this argument:
Swanner cannot reasonably claim that he does not rent or show property to
cohabitating couples based on their conduct (living together outside of marriage)
and not their marital status when their marital status (unmarried) is what makes
their conduct immoral in his opinion. The undisputed facts demonstrate that
Swanner would have rented to the prospective tenants if they were married.
Swanner's argument that he discriminated against the prospective tenants based on
their conduct and not their marital status is without merit.
874 P.2d at 278 n.4. Swanner also maintained that enforcement of the
antidiscrimination statutes violated his right to free exercise of his religion. The
court also rejected this argument as well. 874 P.2d at 284.
Tumeo and Wattum correctly argue that Swanner and Foreman are compelling
authorities for this case. Here, the University would provide health care coverage to
these couples if they were married and is refusing to provide health care coverage
only because they are not married. The University stands in the shoes as the
Foremans and Swanner.
The University, by providing added health care coverage for married employees but
not for unmarried employees, is compensating married einployees to a greater
extent than it compensates unmarried employees. As a result, the definition of
RdependentS in the University's health care plan plainly results in discrimination
on the basis of marital status. 6**
6** The University has not suggested any "reasonable demands of the position"
held by either Tumeo or Wattum that would require distinction on the basis of
narital status. See AS 18.80.220 (a) (1) ; McLean v. State, 583 P. 2d 867, 869 (Alaska
1978)
The University's Grievance council (and the University's President, to the extent
that he relied on the Grievance councilUs rationale) misapplied state law in making
the decision in this case. The Grievance Council explained its holding that the
university had not discriminated against the appellants on the basis of marital
status:
(S)ame-sex marriage is not recognized by Alaska law and hence the marital
condition of being married is not fulfilled by the grievants and hence there was not
a reasonable likelihood that respondent violated, misinterpreted, or improperly
applied Board of Regents policy with regard to the marital status of the grievants.
only if grievants, not being in the marital status of marriage under state law, had
been denied benefits only available to those falling under the marital (status) of
being single (or Married), could the grievants, unmarried under state law, be
considered to have been discriminated against because of their marital condition.
R. 13-14 (emphasis added). Apparently, the Grievance council thought that to prove
marital status discrimination, a person was required to show that he or she was
denied benefits available only to employees who are of the same marital status.
Instead, marital status discrimination may be proved by a showing that a person was
denied benefits available only to employees who are of a different marital status. see,
e.g., Swanner, 874 P.2d at 278. That is, a single person may show that he or she is
being denied benefits only available to married persons. Such a showing has been
made here.
Whether Tumeo and Anders or Wattum and Mcclendon are able to obtain a
marriage licence in Alaska is irrelevant to this court's holding. Discrimination
against unmarried couples, even when they are of the same sex, constitutes
discrimination based on . marital status. see, e.g., Zahorian v. Russell Fitt Real Estate
Agency, 301 A.2d 754, 757 (N.J. 1973); cited by Foreman, 779 P.2d at 1202 n.7.
The University claims that the couples in question in this case are not "similarly
situated" to married employees because married employees are legally obligated to
support their spouses while unmarried employees are not legally required to
support their partners. See Voyles v. Voyles, 644 P.2d 847, 849 (Alaska 1982) (there is
a legal obligation of support embodied in a marital relationship). The University
States:
In the State of Alaska, there is a mutual duty of general financial support between
married individuals. There is no similar obligation between unmarried couples of
any gender. This obligation may be compelled by the state and enforced in the
courts. Because of the obligation of general financial support, appellants' legal
statuses are not similar to those of married University employees. Accordingly, the
disparate treatment alleged by appellants in the application of the University's
definition of "dependent," although "discriminatory," is not violative of AS
18.80.220.
Appellee's Br. at 20.
The University's argument apparently goes like this: (1) it may lawfully
discriminate among its employees by offering health care benefits to those persons
for whom its employees are obligated to provide financial support. (2) Married
einployees are legally obligated to support their spouses. (3) Therefore, the
University may discriminate on the basis of marital status.
The University's argument is flawed.7** The University's argument is based on the
same logical error that plagued wanner; the logic is tautological. The University says
that it is not discriminating based on marital status but rather on the legal obligation
of mutual support. However, by the University's logic the only way to have a legal
obligation of mutual support is through marriage. Thus, this is a distinction
without meaning, just as SwannerUs "conduct" argument was a distinction without
meaning.
7** The logical extension of the University's argument would permit the University
to pay extra to employees for their work based on their legal obligation to support a
spouse. Thus, a single person might be paid $50 for a job for which a married person
might be paid $100. Such a result would plainly be unlawful discrimination based
on marital status.
The University argues that Swanner and Foreman are "clearly distinguishable from
the instant caseS, because in those cases "there was no distinction between the
unmarried applicants and married renters.S Appellee Br. at 21. The University
claims that "although the Alaska supreme Court did not articulate this fact, the
applicants for rental property were Tsimilarly situated' to married rentersS Appellee
Br. at 21. It argues that [i]n order to be unlawful, discriminatory treatment must be
directed toward individuals who are 'similarly situatedU.119 Appellant Br. at 16.
The university does not explain why it believes that the heterosexual couples in
Swanner and Foreman were similarly situated to married renters while the
homosexual couples in this case are not similarly situated to married employees.
Two possibilities come to mind. First, it may be that the University believes that the
Swanner Foreman couples were "similarly situated" to married couples because
they would have been allowed to marry but chose not to, unlike the couples in this
case who the University claims are not permitted to marry. Such a distinction is
irrelevant.8**
8** Even if this distinction were relevant, the University would have to show that
same-sex marriages are prohibited in Alaska. The Alaska Supreme Court has not
been asked to decide whether Alaska's marriage statute allows for same-sex
marriages. The memorandum from the presiding judge of the Third Judicial District
is not a conclusive statement of the law in this regard. Appellee Exh. A. The
University has provided no legal argument that such marriages are prohibited.
Next, it may be that the University believes that the Swanner Foreman couples were
"similarly situated" to married couples because they were financially
interdependent while the couples in this case are not. Certainly, unmarried
heterosexuals have no more claim to financial interdependence than unmarried
homosexuals. Therefore, this rationale does not indicate that the Swanner/Foreman
couples were "similarly situated" to married couples while the couples in this case
are not.
The university also argues that R[a]n almost identical set of facts as those presented
here was before the Wisconsin Court of Appeals in Phillips v. Wisconsin Personnel
Commission,S 167 Wis.2d 205, 482 N.W.2d 121 (Wis. App.1992). In response, Tumeo
and Wattum claim that the Phillips opinion rests upon a materially different
statutory scheme.
The court does not regard Phillips as persuasive authority. The court in Phillips
faced a much different statutory scheme. There the court was faced with two
potentially inconsistent statutes: one prohibited discrimination based on marital
status, the other defined RdependentS for the state health insurance plan as
Sspouse." Where two statutes are inconsistent, the court's task is to reconcile them
in such a way as not to nullify either. Here there is only one statement of legislative
intent: AS 18.80.220 prohibits discrimination based on marital status. There is no
competing statute which requires interpretative gymnastics.
The University also argues:
the question before this court is not whether the University should provide
coverage to unmarried individuals or whether state or federal law prevents the
University from doing so, Instead, the question before the court is whether state or
federal law requires the university to offer coverage to unmarried individuals.
Appellee Br. at 25. The University misstates the question before this court. The
question is not whether "State or federal law requires the University to offer
coverage to unmarried individuals," as the University claims. Rather, the question
is whether state or federal law prohibits the university from using marital status as a
classitication for determining which of its employees will receive additional
compenration in the form, of third-party health coverage. This court holds that such
a classification violates state laws prohibiting marital status discrimination, and that
therefore the university's current definition of "dependent" is unlawful.
This holding is not tantamount to requiring the University to offer coverage to
unmarried individuals. The holding does nothing more than prohibit the
University from using marital status to determine whether or not to provide its
employees with additional compensation in the form of subsidized health care
coverage for the employees' partners. This holding need not result in radical
changes in the University's existing policy, nor need it result in significant
administrative burdens.
The University, confronted with a ruling from this court that its current plan
violates AS 18.80.220, would have many options. First, it could simply refuse to
provide health care coverage for spouses, That is, it could eliminate "spouse" from
its definition of RdependentS. Second, the UniversitY could rewrite its plan to
indicate that "dependents" include all persons for whom its employees provide the
majority of financial support. The University could adopt Tumeo and Anders,
"Affidavit of Spousal Equivalency". The health care plan could be rewritten to
indicate that health care coverage would be available for all employees and for
employees' domestic partners, provided the employee and the partner were willing
to sign an affidavit such as Tumeo and Anders' affidavit. Certainly, married
employees would be willing to sign such an affidavit. However, the plan would be
nondiscriminatory because an unmarried employee could also sign the affidavit if
he or she were in a domestic partnership involving financial interdependence.
Other options are probably also available. Certainly the three mentioned above
would not result in radical, sweeping changes in the University's existing policy.
Further, the administrative problems associated with these options would likely be
minimal. Finally, and perhaps most importantly, the University would not be in a
position in which it would have to engage in intense scrutiny of its employeesU
relationships.
The University correctly notes that Thomas v. Anchorage Telephone Utility , 741
P.2d 618 (Alaska 1987) adopts a three-stage analysis for disparate treatment
employment discrimination cases. In the first stage, the employee must show a
prima facie case of employer discriminatory intent. If the enployee does so, in the
second stage the employer must articulate a legitimate, nondiscriminatory reason
for the disparate treatment. if the employer does so, in the third stage the employee
must prove that the proffered reasons are pretextual. The court has determined that
Tumeo and Wattum have shown a prima facie case of disparate treatment. On its
face, the University's health plan favors married couples over unmarried couples.
The University has articulated a basis for the discrimination: the legal mutual
obligation of support that results from marriaqe. The court determines that this is
pretextual. As noted before, to allow this basis for disparate treatment would be to
eliminate the prohibition against marital status discrimination. Any employer
could raise the argument with respect to any item of employee compesation.
Recognition of the proffered reason for disparate treatment would result in circular
reasoning. Accordingly, the court determines that Tumeo and Wattum have
proven their allegation of discrimination based on marital status.
For these reasons, the court concludes that President Komisar's decision must be
REVERSED. The matter will be REMANDED or further proceedings consistent-with
this opinion.9**
9** Because of the disposition of this issue it is not necessary to reach the other two
issues raised by appellants. In the interest of completeness the court notes that the
Grievance Council misstated the law of sexual discrimination; mere "equal
application" does not render a regulation nondiscriminatory. See Loving v.
Virginia, 388 U.S. 1, 8, 18 L.Ed.2d 1010, 1016 (1967). However, the count concludes
that the health plan does not discriminate on the basis of sex.
The court does not reach the argument that the plan violates the requirement of
merit-based employment because the university never addressed the issue and the
case is remanded for further proceedings, where, if necessary, the University may
consider the allegation in the first instance.
DATED at Fairbanks, Alaska this 11th day of January, 1995.
Mary E Greene
Superior Court
Judge